PLD 1972 SC 139

ASMA JILANI

Versus

GOVERNMENT OF THE PUNJAB AND ANOTHER

CONSTITUTION OF PAKISTAN (1973) ARTICLE 2A.

If a grund-norm is necessary, Pakistan need not have to look the Western legal theorists to discover it. Pakistan’s own grund-norm is enshrined in its kown doctrine that the legal sovereignty over the entire universe belongs to Almighty Alla alone, and the authority exercisable by the people within the limits prescribed by Him is a sacred trust. This is an immutable and unalterable norm which was clearly accepted in the Objectives Resolution passed by the Constitutent Assembly of Pakistan on the 7th of March, 1949. This has not been abrogatedby any one so far, nor has this been departed or deviated from by any regime, military or civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy Quran:

The basic concept underlying this unalterable principle of sovereignty is that the entire body politic becomes a trustee for the discharge of sovereign functions. Since in a complex society every citizen cannot personally participate in the performance of the trust, the body politic appoints State functionaries to discharge these functions on its behalf and for its benefit, and has the right to remove the functionary so appointed by it if he goes against the law of the legal sovereign, or commits any other breach of trust or fails to discharge his obligations under a trust. The functional Head of the State is chosen bys the community and has to be assisted by a Council which must hold its meetings in public view and remain accountable to public. It is kunder this system that the Government becomes a Government of laws and not of men, for, no one is above the law. It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system “the law rules through the utterance of justic, and the power of the Governor carries out the utterance ofit. [p.182]

COURT, DUTY OF —

No duty cast oinb Courts to enter upon purely academic exercises or to pronounce upon hypothetical questions—Court’s judicial function: to adjudicate upon real and present controversy formally raised before it by litigant—Court would not suo motu raise a question and decide it.

The Courts jdo not decide abstract hypothetical or contingent questions or give mere declaration in the air. There is no duty cast on the Courts to enter upon purely academic exercises or to pronounce upon hypothetical questions. The Court’s judicial function is to adjudicate upon a real and present controversy which is formally raised before it by a litigant if the litigant does not choose to raise a question, however, important it might be, it is not for the court to raise it suo motu. [p166]

STARE DECISIS — Doctrine of stare decisis —

Flexible in its application—Law cannot stand still nor can the Courts and Judges be mere slaves of precedents.

Inspite oif a Judge’s fondness for the written word and his normal inclination to adhere to prior precedents one cannot fail to recognise that it is equally im,portant to remember that there is need for flexibility in the application of this rule, for, law cannot stand still nor can be judges become mere slaves of precedents. The rule of stare decisis does not apply with the same strictness in criminal, fiscal and constitutional matters whewre the liberty of the subject is involved or some other grave injustice is likely to occur by strict adherence to the rule.

BIAS — BIAS IN JUDGE —

Mere association with drafting of a law–Does not necessarily disqualify a Judge from interpreting that law in the light of arguments advanced before him. [p.178]

JURISDICTION —

Superior Courts are Judge of their own jurisdiction.

The Courts undoubtedly have the power to hear and determine any matter or controversy which is brought before them, even if it be to decide whether they have the jurisdiction to determine such a matter or not. The superior Courts are, as is now well settled, the Judges of their own jurisdiction. This is a right which has consistently been claimed by Supreme Court and other Courts of superior jurisdiction in all civilised countries.[p.197]